133 NY 267 (1892)
In Phelps, the defendant was convicted of the crime of abortion in the St. Lawrence County Court of Sessions after it was proven at trial that he advised a pregnant woman that “she should go to a certain physician and get some medicine and she could procure an abortion if used at the right time.” The pregnant woman neither acted on this advice nor took any medicine or drug to produce an abortion. On appeal, the General Term of the Supreme Court in the Third Judicial Department reversed the judgment of conviction. The Court of Appeals unanimously affirmed.
Penal Code section 294 provided in relevant part that “a person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, * * * advises or causes a woman to take any medicine, drug or substance, * * * is guilty of abortion.”
Under a literal reading of the statute, the defendant was guilty of the crime of abortion when he advised the pregnant woman to obtain and take medicine to procure an abortion. Judge Gray, writing for the court, found such a result illogical and unsustainable. “It would be a very strict and literal, if not an extraordinary, construction of this section to hold that proof of mere suggestion or advice, without evidence of its being acted upon, could convict a man.” Such a literal application of the statutory language to convict the defendant of abortion would not promote justice where the facts of the case demonstrated, at most, an attempt to commit the crime.
While it would be perfectly competent for the legislature to impose a punishment for the mere giving of advice to a woman to take a medicine to procure an abortion, irrespective of its being acted upon, I do not think that we are warranted in saying that that was their intention here. For a man to be ‘guilty of abortion,‘ within the provisions of this chapter, who has advised the woman to take a drug, it is necessarily and logically to be implied that his advice should have been followed by the act. Otherwise we should have to draw the apparently absurd conclusion that the legislature intended that abortion could be committed, or caused, by the act of offering advice.